Kesha’s Court Case – It Shouldn’t Be This Hard

“There has been no showing of irreparable harm. She’s being given opportunity to record.”

This is part of the statement given by the judge who ruled that Kesha would not be able to break her contract with her alleged rapist and abuser, Dr Luke.

The ‘no showing of irreparable harm’ refers to her musical career, not her mental health. Because as soon as Kesha’s allegations were dismissed due to lack of proof, that was dismissed too, and the ruling became purely about business.

The main foundation of the US justice system is ‘innocent until proven guilty’. But there is a deep flaw in that ideal: it goes hand in hand with ‘if you cannot prove your statement to be true, then you must be a liar.’ And when you call someone who has suffered unthinkable trauma a liar, it has disastrous consequences.

Record producer, Dr Luke

Kesha is not trying to put Dr Luke in jail – I can only assume that is because she knows she doesn’t have enough proof to make that happen. All Kesha is asking for is to be able to work without putting money into the pocket of her abuser.

But because she cannot prove the abuse, the courts have decided she is a liar. And why would they want to help a liar?

But in the case of rape, it is unbelievably hard to prove. In order to have any chance at all, you need to go straight to the hospital, without having washed yourself, so that you can provide DNA samples. But often these DNA samples can only really be used to prove that you’ve had sexual intercourse. They can’t prove that it was forced.

This fact alone means that more than half of women who say they have been raped also say that they took no legal action – because they knew they would not be believed.

Some facts:

– Rape is incredibly hard to prove. Even if you take immediate action and go to the hospital to get DNA samples taken (which many victims don’t do, due to the impact of the trauma) it’s hard to prove that those samples were a result of rape and not consensual sex.

– Studies show that around sixty percent of women who claim to have been raped also say that they did not take legal action.

– There is absolutely no evidence to show that women are any more likely to lie about rape than anyone else is about any other felony. Most women who withdraw their allegations state that they do so not because their allegations are false, but because they know they are going to lose.

– In cases where the abuser is in a position of power over the victim (like, say, having total control over their career) then the victim is even less likely to come forward.

This is the society we live in. This is the context that must be taken into consideration when dealing with rape cases.

And yet, still, bubbling underneath this whole case is the belief that women are likely to accuse people of rape in order to get what they want. People are frequently pointing out the fact that Kesha once swore under oath that Dr Luke didn’t rape her, as if that disproves her current allegation, which she also swears under oath. Despite the huge amount of evidence to support the fact that women are more likely to deny rape than to come forward about it, people are more willing to believe her first statement. They want to completely forget the context of the rape culture we are living in.

On the subject of Kesha’s case, TV host Wendy Williams stated: “If everybody complained because somebody allegedly sexually abused them and was ripping them off, then contracts would be broken all the time.”

As if Kesha winning her case would then start a trend of women accusing people of rape just to get out of a contract they aren’t happy with. As if most women are the type of people who would tell a lie that could ruin someone’s life just to get out of a business deal. As if most women are, in fact, selfish spoiled children who either cannot comprehend how their choices might effect others, or simply do not care.

This is not reality. This is an outrageous depiction of the female gender.

In a world in which the majority of people who actually experience rape are so afraid to report it, how can we possibly think it likely that a horde of fully grown, intelligent women are suddenly going to start making false allegations, based on the fact that Kesha managed to get out of her contract? It’s absolutely preposterous, and says a lot about what society thinks of women.

Lady Gaga is one of the many women in the music industry who are publicly showing their support for Kesha. Her feelings on rape culture: “I wanna be somewhere where when a child says ‘I was raped’ that every adult in the room says ‘Are you okay? What happened? We want to help you.”

Kesha’s case was a perfect opportunity for that to happen.

Given all the facts about rape – how few women come forward, and how hard it is to prove – we cannot continue to say that if a victim cannot provide proof then they must be a liar. We cannot continue to ruin victims lives by allowing it to be so easy to disregard them.

There has to be another way. I’m not sure exactly what it is, but I’d like to think we could make a start with cases like these. In a case which is simply the request to terminate a business contract, a case where there is no jail time involved for Dr Luke, a case where he would still get to keep his job, and all the money he has made from Kesha up until now, a case where there would be no real punishment for him, just liberation for her… I’d like to think that that would be when the court would take the opportunity to say ‘Victims of rape, we know the world is against you, but we want to help you, we want you to be believed.’

But they didn’t take that opportunity. And to me, that is absolutely devastating.

Eleanor is an actor, writer, and performance poet who recently graduated from Birmingham School of Acting. She is currently performing in a Theatre in Education tour in Germany with White Horse Theatre, and is beginning to learn how to be a grown up.

1 COMMENT

And now consider the other side of the argument. Firstly, rape is not an exclusively female problem – men are raped too. Men are sexually assaulted too. Heterosexual, and homosexual men are raped, and the burden of proof is no easier for them, but it is socially even more difficult for men to come forward.

Rape has nothing to do with gender, because it is not just to do with sex. It is about power, and the abuse of it. There are many women who are indeed the victims of rape (or other sexual offences), the presumption of guilt over a man flies in the face of allowing a victim a fair trial. But that is not possible. Under our current the system, “claimants” (since “victim” is not the correct term) are granted lifetime anonymity unless they choose to wave that right. The accused does not. So even before a court trial, even before charges have been made, the accused will have their entire character attacked, dragged though the mud, reputation potentially destroyed, loss of work, friends, family, trust, dignity, home… loss of everything even BEFORE there is any case to hear.

Even without any proof the accused (usually a man) is branded in such a way that there is no going back. And in the UK at least (similar in US) all of this can happen with no evidence of a crime. It is the only area of the law that this is allowed. You cannot try a murder without evidence of it being committed – a person having simply vanished is not enough. You can’t charge for vandalism just because someone SAYS it happened – no evidence, no crime…how can you convict? And yet, it does happen. And when it comes to rape, it is not just the act that is attacked, it is the whole person.

Now it is the legal case that in a woman says she was raped a man has to prove he had consent. The weight of anti-male attitude has been worsened. If a man sleeps with a woman when they are both drunk and in the morning she can’t remember if she consented – bang, he’s a “rapist”. No, not BOTH of them irresponsible sexual partners getting too drunk to make a sensible mutual choice: automatically, an abuser and a victim. Imagine what would happen if a man said he never consented to the sexual intercourse and she took advantage of him. No talk of that was heard – it was all “the man must PROVE she consented”.

I do not in any way deny that people act abhorrently and assault others. But this notion that “false allegations are rare” is an utter nonsense. I personally have been a victim of a false, malicious allegation. I know a man who not only suffered extremely as a false allegation of rape from an abhorrent liar, subjecting him to crippling mental health issues, worsening his health, and doing exactly what the liar intended by destroying any chance he can seek custody of his children with her (despite the fact that he has other children that he is deemed totally safe to be with, and another wife his is also safe: nope, none of that counted as he sat for almost a year waiting for anyone to listen to the overwhelming evidence of his innocence.)

I also work with another individual on criminal cases and between us, (including her own son), we have personally supported and advised no less than 30 falsely accused men over the past 2 years. One of which recently got convicted and faces many years in jail for an offence that was actually physically impossible to commit by the way it was described (the defendant would have needed to have been 12 foot tall, as an example); even though no-one believed the “victim”; not even the interviewing officers believed the “victim”.

And yet, even when a court or police force have absolute proof the alleged incident was a lie, the vast majority of police forces simply refuse to prosecute liars. So, the REAL victim – the accused – is languished with massive debt (Michael Le Vell had £200,000) which he is legally blocked from claiming back or any compensation for; has never been allowed anonymity so his reputation is shot; often jobs have already been lost and relationships damaged beyond repair…

….and worst of all? Whilst these false allegations were distracting the police and other resources…REAL victims of sexual assault are going unhelped, suffering in silence. Adults AND children.

The current system is not fit for purpose – not MY opinion alone, but backed up by leading, experienced barristers and lawyers and judges. And in Kesha’s case, she is not the “victim” in the eyes of the law. The person she accused is the victim. To claim that he only “got away with it” because rape is hard to prove is a non-sequitur. Maybe he “got away with it” because he didn’t do it.

I campaign all the time for both sides of this argument. I campaign for the TRUTH, not just the perception of proof. Until we stop letting politicians wade in, clumsy and unqualified, and stop trial by media to dish out social verdicts before facts are known, it is forever going to be the game of who is “believed” rather than what is the truth.

Why should men, why should the accused have any LESS right to truth than the accuser? And why should we treat women with any more support or sympathy as “victims” than men? There is so much substantiated research around that shows that false allegations are NOT “rare” that it is an act of sheer ignorance to dismiss the possibility that when people are accused and they say “I did NOT do it…” that THEY are lying.

The burden of proof SHOULD be on the accuser, absolutely. And until you know someone who has been wrongly convicted, or even just accused…and seen their life destroyed with no going back…I don’t think anyone has the right to brush the issue off as “rare” an insignificant.